Committee advances bill to narrow state water permitting definition; environmental groups warn of groundwater and headwater losses

Senators voted to report Senate Bill 89 favorably out of the Natural Resources Committee after testimony from industry representatives and environmental advocates who described sharply different impacts of the proposed change to how Kentucky defines and regulates waters of the Commonwealth.

Sen. Scott Maiden, sponsor, told the committee the bill would align Kentucky’s definition of waters of the Commonwealth with the U.S. Supreme Court’s 2023 guidance on the “waters of the United States” and would codify an existing definition and bond-calculation method for “long-term treatment” at mine sites. Maiden said the measure protects coal industry permits from what he characterized as overbroad state regulation by the Energy and Environment Cabinet and preserves jobs and local economies.

Coal-industry witnesses, including representatives of the Kentucky Coal Association, supported the bill at the table. Opponents from Kentucky Resources Council and Kentucky Waterways Alliance warned that the change would remove state protection for groundwater and many headwater and ephemeral streams, increasing risks to drinking water and aquatic habitat. Audrey Ernstberger, an attorney for Kentucky Resources Council, said the bill would strip the state’s ability to regulate certain groundwater and headwater flows and outlined public‑health and economic concerns; Nick Hart, policy director for the Kentucky Waterways Alliance, cited state impairment statistics for streams and said wetlands and ephemeral flows deserve protection.

Questions from committee members reflected those competing concerns. Supporters said the measure implements state statute limiting state regulation to the scope of federal authority; opponents said the federal court ruling does not relieve the state from protecting groundwater and headwater streams that Kentuckians rely on for drinking water and flood control. Catherine Hargraves, a longtime water advocate who testified, said headwater and ephemeral streams slow floodwaters and filter pollutants before they reach major rivers.

After a brief debate, the committee called the question and took a roll call. The committee reported SB 89 favorably with the recommendation that it pass on a recorded vote of 11 in favor and 1 opposed. The roll call recorded ayes from Senators Boswell, Carpenter, Elkins, Girdler, Maiden, Mills, Webb, West, Wheeler, Williams and Chair Smith; Senator Herron voted no. The committee chair announced the bill reported “favorable with the expression that the same shall pass.”

Why it matters: The bill would change how Kentucky defines jurisdictional waters for state permitting and would alter bond calculations for long-term treatment at mine sites. Supporters say the change prevents state-level overreach and reduces permitting delays and cost burdens for coal and construction interests; opponents say it would remove state protections for groundwater, headwater streams and wetlands and could increase treatment and public‑health costs downstream.

What’s next: With the committee report, SB 89 moves to further consideration in the Senate. Several senators said they wanted additional study and urged consultation with the Energy Planning and Inventory Commission (EPIC) or the cabinet to refine language before final action.